Delhi High Court
Sonu @ Hemraj vs State (Nct Of Delhi) on 24 December, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 10.09.2020
% Pronounced on : 24.12.2020
+ CRL.A. 351/2020 & CRL.M.(BAIL) 7644/2020
[email protected] HEMRAJ .....Appellant
Through: Mr. S.B. Dandapani, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Ashish Dutta, APP with SI Prince,
P.S. Sangam Vihar.
+ CRL.A. 395/2020 & CRL.M.(BAIL) 7821/2020
MUKESH @ HADDI .....Appellant
Through: Mr. B. Badrinath, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Ashish Dutta, APP with SI Prince,
P.S. Sangam Vihar.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. By this common Judgment, we shall dispose of the above mentioned
two appeals which have been filed against the Judgment dated 01.10.2019
and order on sentence dated 23.12.2019 passed by the Addl. Sessions Judge-
03, South-East District, Saket Court, New Delhi vide which both the said
appellants have been convicted for the commission of offence U/s
302/394/397/34 IPC and appellant Mukesh @ Haddi has also been convicted
for the offence U/s 25 Arms Act and both the said appellants have been
sentenced for life imprisonment and fine of Rs. 10,000/- each for the offence
U/s 302 IPC and in default of payment of fine, simple imprisonment for one
month. Further both the appellants have been sentenced to rigorous
imprisonment for a period of 8 years and fine of Rs. 10,000/- each for the
offence U/s 394 IPC and in default of payment of fine, simple imprisonment
for one month. Further both the appellants have been sentenced to rigorous
imprisonment for a period of 10 years for the offence U/s 397 IPC.
Appellant Mukesh @ Haddi has also been sentenced to rigorous
imprisonment for a period of 3 years and fine of Rs. 5000/- for the offence
U/s 25 Arms Act and in default of payment of fine, simple imprisonment for
15 days. All the sentences have been directed to run concurrently.
2. In brief, the facts of the case are that on 28/29-11-2010, DD No. 62-B
regarding stabbing of a boy near Government School, C-Block, Sangam
Vihar was received as PS Sangam Vihar which was marked to SI Bharat
Singh. IO along with other police staff reached in front of C-73, Sewa
Sadan, C-Block, Sangam Vihar, New Delhi where SI Bharat Singh along
with Ct. Vijay Narayan met him.
3. IO was informed that injured had already been shifted to hospital. IO
went to AIIMS Trauma Centre. The injured was declared brought dead by
the doctor. IO collected MLC of deceased and thereafter, IO came back to
the spot. IO made endorsement on DD No. 62-B for registration of FIR and
same was handed over to Ct. Vijay Narayan for registration of FIR. On the
basis of rukka present FIR was registered.
4. Thereafter, investigation was carried out and during investigation, the
name of deceased was revealed as Roshan. IO recorded the statements of
witnesses namely Shashi and eyewitness Akhil. Thereafter, IO along with
other police staff went in search of accused persons and eye witness Akhil
also went along with them. IO along with Akhil, Gaurav Katheria and other
police staff reached near Shri Ram Sweet Shop, where eyewitness Akhil and
injured Gaurav Katheria identified three boys who were standing near
aforesaid shop on Bandh Road. IO apprehended all the said three boys and
interrogated them. Thereafter, all the three accused were arrested in the
present case. Their personal search were conducted and their disclosure
statements were recorded by the IO and further investigation went
underway.
5. After the completion of the investigation, the charge sheet was filed
against accused persons namely Mukesh @ Haddi, Sonu @ Hem Raj
(present appellants) and Vijay Kumar in the court of Ld. M.M., who after
complying with the provisions of Section 207 Cr.P.C., committed the case to
the Court of Sessions for trial.
6. Vide order dated 13.10.2011 charges were framed against accused
Mukesh @ Haddi, Sonu @ Hem Raj (present appellants) and Vijay Kumar
for the offences under Section 302/397/394/34 IPC and against appellant
Mukesh @ Haddi for the offence under Section 25 Arms Act to which they
pleaded not guilty and claimed trial. Amended charges against all accused
namely Mukesh @ Haddi, Sonu @ Hem Raj (present appellants) and Vijay
Kumar were also framed on 03.01.2013. Thereafter, vide order dated
03.01.2013 accused Vijay Kumar was declared juvenile and he was sent to
Juvenile Justice Board.
7. In order to prove its case, the prosecution examined 29 witnesses. We
have heard the Ld. counsels for the appellants, Ld. APP for the state and
have also gone through the records of the case.
8. It is urged by the Ld. counsel for appellant Sonu @ Hemraj that the
IO has initiated investigation on a wrong premise because the first message
about the incident was received from mobile No. 9266065167 which
belonged to one Munir Alam, who could be an eye witness or offender
himself. He further urged that from the spot, IO found a Nokia mobile
phone at the back of which No. 9289505974 and the name of Roshan
(deceased) was written but the IO has failed to obtain the call
details/location chart of this phone. He further urged that PW 18 and PW
20, who according to the prosecution are the star witnesses of the case are
planted and tutored witnesses and no reliance can be placed upon them. He
further urged that the IO has not conducted the investigation fairly and no
public person and local residents were joined when the appellant pointed out
the place of occurrence or got the alleged robbed articles and weapon of
offence recovered.
9. The submissions of the Ld. counsel for the appellant Mukesh @
Haddi are also somewhat similar to those of the Ld. counsel for the appellant
Sonu @ Hemraj. He has also urged that PW 18 and PW 20 are the planted
witnesses and he further urged that seizure of wallets and knife are not
reliable and doubtful and the investigation is defective and innocent persons
have been implicated. To support his contentions, he placed reliance upon
the following judgments:
(a) Shankarlal Vs. State of Rajasthan, 2004 (10) SCC 632.
(b) Harbeer Singh Vs. Sheeshpal & Ors., 2016 (16) SCC 418
(c) Yakub Abdul Razak Memon Vs. State of Maharashtra, 2013 (13) SCC 1
(d) Ram Bali Vs. State of UP, 2004 (10) SCC 598.
(e) Krishna Vs. State, 2020 SCC Online Del 93.
10. On the other hand, Ld. APP for the State has supported the impugned
judgment and stated that there is no infirmity in the impugned judgment and
order on sentence. He further submitted that PW 18 is a reliable and injured
eye witness, who received injury on the intervening night of 28/29.11.2010,
at Holi Chowk. He further urged that PW 18 was robbed of his purse at the
point of knife and he even identified appellant Sonu as one of the robbers.
He further urged that all the accused persons were arrested on the
identification of PW 18 and PW 20. Ld. APP further submitted that other
eye witness i.e. PW 20 has categorically deposed about stabbing of deceased
Roshan and also about the arrest of accused persons. He further urged that
nothing could be extracted from the cross examination of these two star
witnesses so as to make them untrustworthy.
11. It is further submitted by the Ld. APP that PW-22 SI Bharat Singh
when reached the spot found one Nokia mobile phone. On this mobile
phone, number 9289505974 was written on one side of the battery and name
of deceased Roshan was written on the other side of the battery which was
handed over by him to IO inspector JD Meena who had also reached the
spot. Ld. APP further urged that during the investigation it was revealed
that from this mobile phone PCR call at number 100 was made at about 1:27
a.m. which has been corroborated by PW 28 by stating that a call was
received at 1:26 a.m. from mobile No. 9266065167 and the caller informed
that he had been stabbed near Govt. School, Sangam Vihar. He further
urged that the deceased was using SIM having mobile No. 9266065167 from
his mobile instrument Nokia which no doubt, belonged to Munir Alam, but
that cannot be the reason to doubt the call made by him. He further urged
that mobile No. 9289505974 has no connection with the case, so there was
no need for the IO to go into the details of this number. He further urged
that 10 years back the SIM cards and Mobile phones were sold by the
shopkeepers without any detailed verification. He further urged that CAF of
mobile No. 9266065167 has been proved as Ex. PW 29/G with ID proof and
the CDR of this phone from 26.11.2010 to 29.11.2010 has been proved as
Ex. PW 29/H alongwith location chart. He further urged that the recoveries
made at the instance of the appellants are believable and the same cannot be
doubted.
12. The material witnesses in this case are PW 18 and PW 20 and we will
discuss the testimonies of these two witnesses in the later part of the
judgment.
13. As far as the contention of the Ld. counsels for the appellants that the
IO has initiated investigation on a wrong premises because the first message
about the incident was received from mobile No. 9266065167 belonging to
one Munir Alam who has not been examined by the IO has no force in it.
On the date of the incident i.e. the intervening night of 28/29-11-2010, PW
28 was posted at CPCR, PHQ. He has deposed that at about 1:26 a.m. a call
was received from mobile No. 9266065167 and the caller informed that he
has been stabbed at C-Block, near Govt. School, Sangam Vihar. He filled
the PCR form regarding the said information and informed the police control
room, on the basis of which DD No. 62 B was recorded. He proved the PCR
form as Ex. PW 28/A.
14. The information regarding the incident which was recorded vide DD
No. 62-B was marked to SI Bharat Singh, who reached the spot and found
one Nokia mobile phone, on which number 9289505974 was written on one
side of the battery and name of Roshan (deceased) was written on the other
side of the battery. PW 29 Inspector J.D. Meena, who is the IO of the case
also reached the spot and came to know that the injured has been removed to
hospital by PCR. SI Bharat Singh handed over the said Nokia mobile phone
to PW 29 Inspector JD Meena (IO). PW 29 took the mobile phone and
while on the way to the hospital, he checked the same and came to know
that a call at 100 Number was made from this phone at about 1:27 a.m.
which finds corroboration from the testimony of PW 28. PW 22 has also
deposed that last call was made to PCR at 1:27 a.m. from Nokia phone
which was found at the spot. PW 22 has further deposed that on the reverse
side of mobile battery a number was written as 9289505974 and name of
Roshan was also written on the battery. However, on further investigation it
was revealed that the number 9266065167 belonged to one Munir Alam. IO
then collected the CAF and CDR details of the mobile No. 9266065167. The
CAF form is Ex. PW 29/G which is in the name of one Munir Alam and the
CDR of this mobile Number is Ex. PW 29/H.
15. No doubt, the mobile No. 9266065167 is in the name of one Munir
Alam and the IO has failed to examine Munir Alam as a witness in this case
but in our opinion, no advantage of this can be given to the appellants. The
caller on No.100 claimed that "he" had been stabbed. He also gave his
location. At the location the deceased was found and the mobile phone was
also found there from which number 100 had been called. No other person
injured or dead was found much less Munir Alam. If we were to go by the
arguments of the Ld. defence counsels that the said was either a witness or
the offender in this case, then we fail to understand as to why he will leave
his mobile phone at the spot and create evidence against him. It is further
pertinent to mention here that if the phone as alleged by the Ld. defence
counsel belonged to Munir Alam, why Munir Alam would write Roshan on
one side of the battery of the phone. As far as the mentioning of mobile No.
9289505974 which was found written on the battery has no bearing on this
case as this number was simply written on the back side of the battery. The
picture which emerges is that on the date of the incident, deceased was
carrying a Nokia mobile phone having SIM of mobile No. 9266065167-
issued in the name of one Munir Alam from which he made a call at No. 100
about his being stabbed. The CDR which is Ex. PW 29/H also proves that
the location of this mobile No. 9266065167 on the date of the incident was
in Sangam Vihar area where the incident took place. We find force in the
arguments of the Ld. APP that about 10 years back, when the incident
happened, the SIM cards were sold at random without much verification, so,
deceased Roshan was using this SIM in his mobile instrument. Maybe he got
the SIM from the vendor issued in the name of Munir Alam, or Munir Alam
- at some stage gave the SIM for use to the deceased. In the factual
background of this case, these issues are not at all relevant. Moreover, no
suggestion has been given by the Ld. counsel for the appellants to PW 18,
PW 20 and PW-29 (IO of the case) during their cross examination that
Munir Alam was either an eye witness or the offender himself who
committed the offence in the present case. Both the appellants have also not
stated anything in their statements recorded U/s 313 Cr.P.C that it was
Munir Alam who was either the witness, or the offender in the present case.
Therefore, it was deceased Roshan who had made a call at No. 100 from his
Nokia mobile phone in which he was having SIM card in the name of Munir
Alam, and he reported his own injury.
16. The Ld. Trial Court while convicting the appellants has believed the
testimonies of the eye witnesses and has also relied upon the recoveries
effected in the present case.
17. The main thrust of arguments of the Ld. counsel for the appellants is
that the two witnesses i.e. PW 18 and PW 20 are planted witnesses and
recoveries effected at the instance of the appellants are also planted and the
Ld. Trial Court has misdirected itself by relying on these two witnesses.
During the course of the arguments, it was also argued by the Ld. counsels
for the appellants that the police falsely implicated the appellants as police
was clueless about the assailants and nothing has been explained by the IO
as to how he zeroed on the appellants as the culprits of this case.
18. In order to appreciate the arguments of the Ld. counsels for the
appellants that initially the police was clueless, and it is not explained by the
IO as to how he zeroed on the appellants as the accused in this case, we have
perused the case diary of this case, which a criminal Court can do in any
case which is under enquiry or trial in such Court, and use such diaries, not
as evidence in the case, but to aid it in such inquiry or trial.
19. As per Section 172 of the Code of Criminal Procedure, every police
officer making an investigation in a case shall, day by day, enter his
proceeding in the investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and closed his
investigation, place or places visited by him, and a statement of the
circumstances ascertained through his investigation.
20. After going through the case diaries, we found that the IO had definite
leads about the culprits of this case and followed those leads, investigated
the case on the lines of those leads and zeroed on the appellants as the
culprits.
21. According to the prosecution, the deceased used to work as a waiter
and on the date of the incident, after finishing his waiter job he was on his
way back to his house alongwith Akhil (PW 20). In this regard, PW 15 and
PW 16 are the relevant witnesses.
22. PW 15 is Shashi Kumar. He has deposed that he was a student of
class 11th and used to work as a waiter in the marriage parties. He further
deposed that as he was experienced, he used to arrange other boys as waiter
in the parties organized by PW 16 Wahid. He has further deposed that on
28.11.2010, he had arranged Akhil (PW20), Roshan Kumar (since deceased)
and two other boys for a party arranged by Mohd. Wahid at Sangwan
Baratghar and Rs. 150/- was to be given to each boy. He further deposed
that he did not go to Bharatghar on that day as he had to attend the marriage
function of his cousin. He further deposed that on the next day when he
came to school, he came to know that Roshan Kumar was murdered.
23. This witness was not cross examined by the Ld. counsel for the
appellants, so his testimony to the effect that he arranged Akhil (PW20),
Roshan Kumar (since deceased) and two other boys for a party arranged by
Mohd. Whaid (PW 16) at Sangwan Baratghar on 28.11.2010 has gone
unrebutted and unchallenged.
24. PW 16 Mohd. Wahid has deposed that on 28 th November, he did not
remember the year at about 10-11 a.m., he made a call to Shashi (PW 15) to
make arrangement of 4 boys for working as waiters in the marriage party.
He further deposed that at about 5:00 p.m., 4 boys namely Akhil (PW20),
Roshan and two other boys came to him and thereafter he alongwith those 4
boys went to Sangwan Baratghar. He further deposed that at about 1:00
a.m., the said boys left Sangwan Baratghar. He further deposed that after 7-
8 days he came to know from PW 15 that Roshan Kumar was murdered in
the night of 28-29.11.2010, so nobody was willing to work as waiter.
25. The following leading question was put by Ld. APP to this witness
with the permission of the Court to which he answered as follows:
"It is correct that Roshan Kumar was having a bag with him
when he departed from Sangwan Baratghar."
26. This witness was also not cross examined by the Ld. counsel for the
appellants and his testimony has also gone unrebutted and unchallenged. So
from the testimonies of PW 15 and PW 16, it is clear that deceased Roshan
Kumar was working as a waiter and on 28-29.11.2010, he alongwith Akhil
went to Sangwan Baratghar to work as a waiter and left at about 1:00 a.m.
after finishing the work. It is also evident from the testimony of these two
witnesses that on the date of the incident deceased Roshan Kumar was
having a bag with him, when he left Sangwan Baratghar. Therefore, by
virtue of the testimonies of these two witnesses, the prosecution has been
able to prove that Roshan Kumar (deceased) left Sangwan Baratghar on the
intervening night of 28-29.11.2010 alongwith Akhil (PW20) and two other
boys and met with the incident.
27. The Ld. Trial Court while convicting the appellants had believed the
version of PW 18 and PW 20. It has been observed by the Ld. Trial Court
that both these witnesses have correctly identified the appellants and has
also observed that minor embellishments and inconsistencies or some minor
contradictions appearing in the testimonies of the witnesses do not destroy
the case of the prosecution, rather they only add to the truthfulness of their
version.
28. In the light of the above, we shall now examine the testimonies of PW
18 and PW 20 who are the star witnesses of the case of the prosecution.
29. PW 18 Gaurav Katheria had deposed that at about 8/9:00 p.m. on
28.11.2010, he left the house of his sister from Amroha for his house at
Sangam Vihar. On 29.11.2010, at about 1:00-1:15 a.m., when he reached
at Holy Chowk, Gali No. 5, he found three persons came there and crossed
him. According to this witness, assailant Vijay put knife on his neck and
appellant Mukesh told him to hand over whatever he was having. Appellant
Mukesh also took search of his body and appellant Sonu took his purse from
the back pocket of his pant. Thereafter, appellant Mukesh asked him about
his bag and he told that there was nothing which was beneficial to them in
his bag. Appellant Mukesh was having a weapon looking like a knife and he
gave a blow from the said weapon on the left temporal portion above the left
ear of PW 18. Thereafter, the appellants allowed him to go from there. He
has further deposed that at that time, he did not realize that he had received
serious injury on his temporal region but when he reached home, he felt
some pain. On the next morning, he saw that his pillow was blood stained
but he did not give any complaint about the incident. On 30.11.2010, his
friend Shailesh Ponia came to his house and then he disclosed all the facts to
him. So on 01.12.2010, he went to police station Sangam Vihar to lodge
complaint regarding the incident and the police took him to AIIMS Trauma
Centre, where he was medically treated. Thereafter they returned to the
police station and police told him to inform them whenever, he saw any of
those assailants.
30. He further deposed that as he was hungry, he decided to take some
snacks at Shriram Sweets and he saw all the three assailants standing near
momos shop. He called SI Brahm Dutt, who reached there alongwith the
police staff and at his instance, appellant Sonu, appellant Mukesh @ Haddi
and accused Vijay were arrested. During his testimony in the Trial Court, he
identified all the three assailants and also identified the case property
consisting of one purse, one I Card in the name of Gaurav Katheria of
Prayas Institute for Economic Empowerment, Tuglakabad, Delhi which are
exhibited as Ex. P-3.
31. PW 18 was extensively cross examined on behalf of the appellants
and in his cross examination he was unable to tell as to how many times his
statement was recorded. He further stated in his cross examination that he
had not given his railway ticket to the IO because it was taken away by the
assailants alongwith his purse. He further stated that he had not mentioned
the name of Vijay as one of the person who had put knife on his neck as he
did not know his name at that time, although he had given his description as
he was the shortest amongst the three. He further stated that he had not
handed over his blood stained pillow to the police and the police did not
include any other independent public witness during the proceedings when
the accused persons were arrested. He denied the suggestion that he had
concocted a false story at the instance of the police or that no injury was
caused to him during the incident.
32. It has been vehemently argued by the Ld. defence counsels that PW-
18 has not immediately reported the matter to the police and kept quiet for 2
days, therefore, according to them he is a planted witness. We do not agree
with this contention of the Ld. counsels for the appellants. PW 18 has
categorically assigned roles to the appellants and one of the appellant viz
Sonu was known to him. There is no denial from the side of the appellant
Sonu, that PW 18 was not known to him. It is to be kept in mind that
anybody having faced such an incident, must have been traumatized which
is very natural for anyone coming face to face with such a situation, where
one is encircled by three armed persons in the dead of the night and
suffering a knife injury and robbed. So his keeping quiet is quite natural and
does not make him an unreliable witness and one cannot loose sight of the
fact that people react differently under a given circumstance. Some shows
boldness to report the matter immediately to the authorities, and some let go
the things in order to avoid unnecessary hassles.
33. We cannot lose sight of the fact that both PW18 & PW20 come from
very humble backgrounds. It is a fact - of which we can take judicial notice
that it is not easy for a poor person-who is a nobody, to go to the Police and
make a complaint or report a crime without himself being subjected to
suspicion; often indifference and; maybe harassment. The poor strata have
no, or feeble voice which often goes unheard. This impression-which has
taken root, can easily discourage a common man from reporting a crime-
whether he is a victim or only a witness. The police force has a lot of work
to do in this area to build confidence amongst the masses and give them the
comfort that their voices shall be heard and actioned, and they shall not face
harassment, indifference, disappointment or rejection, if they take courage
of reporting a crime. In the instant case, according to PW 18, it was his
friend Shailesh Ponia who persuaded him to lodge a complaint and on his
backing PW 18 gathered courage and reported the matter to the police. We
do not find anything wrong or unnatural in the conduct of this witness and
his delayed reporting does not make him an unreliable or planted witness.
More so, his testimony finds corroboration with the medical evidence in
regard to the injuries received by him on the night of the incident. PW 27
Dr. M. Sukumar has deposed that the patient i.e. Gaurav Katheria was
having laceration wound over left front temporal region and his MLC has
been exhibited as Ex. PW 27/A. So, the ocular testimony of this witness
finds support from the medical evidence and there is no reason to disbelieve
him.
34. It is also argued by the Ld. counsel for the appellants that PW 18 has
stated in his cross examination that he has given a written complaint to the
police regarding the incident naming accused in the complaint but there is
no such complaint on record which shows that he is an unreliable witness.
No doubt, there is no written complaint on record given by this witness. This
does not necessarily mean that he did not give a complaint and he is lying.
The complaint may not have been diarised or placed on record. It is also
pertinent to mention here that the incident had taken place on the
intervening night of 28-29.11.2010 and his cross examination was conducted
on 05.08.2014 i.e. about 4 years after the incident. So, during this long
period this witness might have mixed up some facts. However, he is very
categorical that his statement was recorded by the police and has also stated
that he had given the description of the appellants in his statement U/s 161
Cr.P.C. to which there is no cross examination. He has also deposed about
the identity of appellant Sonu and also about the articles which were
snatched from him about which we will discuss in the later part of the
judgment. Therefore, from the discussion mentioned hereinabove, we do
not find that this witness is a planted witness, or that no incident happened
with him on the intervening night of 28-29.11.2010.
35. Another material witness is PW 20, namely, Akhil. He deposed that
on 28.11.2010, he was studying in 11th standard and used to work as a waiter
with a caterer. On the intervening night of 28/29-11-2010 at about 1:00-
1:30 a.m., he was returning home from his work and was accompanied by
his friend Roshan-deceased. When they reached at Bandh Road, he saw
three boys standing there but they continued to walk. He further deposed
that thereafter one tall boy came and caught hold of him and his friend from
the collars of their shirt. On this, he and his friend Roshan objected and the
tall boy suddenly stabbed Roshan in his abdomen and he somehow
extricated himself and ran away and reached his house.
36. Next morning in the school, he came to know that Roshan passed
away. He further deposed that in the evening of 30.11.2010 his statement
was recorded by the police. Thereafter on 01.12.2010, he again joined the
investigation. On that day, one more boy was with them who had also
suffered a similar incident in the said area. He further deposed that police
took them at the spot of occurrence at Bandh Road, where all the three
assailants were present and they were identified by him. Thereafter they all
were arrested and their personal search was conducted.
37. In his cross examination, he stated that he was studying in
Government School at the time of occurrence and the name of his employer
at that time was Sanghwan Farm House. He further stated that he did not
mark any attendance at his employer's office as there was no such system
for waiters marking any attendance and the identity card was also not issued.
He further stated that there were 7-8 waiters employed at Sanghwan Farm
House. He further stated that direction of his house and the house of Roshan
was different but some part of their route from Sanghwan Farm House to
their respective houses are common. He categorically stated that there are
street lights at the spot of occurrence which were operational. He further
stated that deceased Roshan was studying in his school. He further stated
that after reaching home, he had not conveyed information about the
incident to anyone over telephone. He further stated that after reaching the
school, he came to know about the death of Roshan. According to this
witness, police had come to him for inquiries but he has not contacted the
police of his own, which came to his house in the evening of 30.11.2010 and
recorded his statement. He further stated that there was no public person at
the spot of occurrence. He admitted it to be as correct that he had pointed
out the spot at Bandh Road as the place where the incident took place. He
further stated that all the assailants were apprehended by the police at Bandh
Road and public persons were present when he had identified the assailants.
He denied the suggestion that no incident took place as alleged. He further
denied that appellant Mukesh @ Haddi was pointed out by him at the
instance of the police.
38. We may firstly note that PW 15 Shashi Kumar and PW 16 Mohd.
Wahid have corroborated each other and categorically deposed that Roshan
(since deceased) alongwith PW-20 Akhil had worked as waiter at Sangwan
Baratghar on the intervening night of 28/29-11-2010 and left at about 1:00
a.m. alongwith PW 20 and two other boys, after which the incident in
question took place. As already discussed hereinabove, there is no challenge
to the testimonies of these two witnesses, therefore, what emerges is that
PW 20 Akhil was with deceased Roshan on the date of the incident.
39. We have already opined the probable reasons for PW18 and PW20
not reporting the matter immediately to the police. Moreover, PW 20 Akhil
is a school going boy of class 11th who must have been traumatized and
shaken by the incident in which his friend was stabbed and lost his life. It
was only when the police during the investigation contacted him on
30.11.2010, he gave his statement. In our opinion, his not reporting the
matter immediately to the police does not make him an unreliable witness.
In his testimony, he has given graphic details of the entire incident as to how
one tall boy came and caught hold of him and his friend from their collars.
He has categorically stated that when he and his friend Roshan (since
deceased) objected to this, the said tall boy stabbed Roshan in the stomach
and this witness extricated himself and ran away from there. There is
nothing in the cross examination which could render the testimony of this
witness unbelievable. Therefore we have no hesitation in accepting the case
of the prosecution that PW 20 Akhil is an eye witness to the incident
which happened with deceased Roshan on the fateful night of 28/29-
11-2010.
40. It was next argued by the Ld. defence counsel that IO has not joined
public witnesses during the investigation and also at the time when the
appellants pointed out the place of occurrence. As far as the question of non
joining of public witnesses is concerned, no doubt, the IO has not joined the
public witnesses but that by itself does not falsify the entire case of the
prosecution. The testimony of the official witnesses cannot be thrown away
simply on the ground that IO failed to join public witnesses. Experience has
shown that public witnesses are reluctant to join the investigation. Even
otherwise, the non joining of public witness by the IO can only be said to be
a fault on the part of the IO which cannot be the sole basis for disbelieving
the entire case of the prosecution and the testimony of the believable official
witnesses. Conviction can be recorded on the sole testimony of police
officials without corroboration from a public witness, if it inspires
confidence. In this regard reliance can be placed upon Tahir Vs. State (1996)
3 SCC 338, in which the Hon'ble Supreme Court has held as follows:
"no infirmity attaches to the testimony of police
officials, merely because they belong to the police
force and there is no rule of law or evidence which
lays down that conviction cannot be recorded on the
evidence of the police officials, if found reliable,
unless corroborated by some independent evidence.
The Rule of Prudence, however, only requires a more
careful scrutiny of their evidence, since they can be
said to be interested in the result of the case projected
by them. Where the evidence of the police officials,
after careful scrutiny, inspires confidence and is found
to be trustworthy and reliable, it can form basis of
conviction and the absence of some independent
witness of the locality to lend corroboration to their
evidence does not in any way affect the
creditworthiness of the prosecution case."
41. As far as the contention of the Ld. counsel for the appellants that no
public witness was joined at the time of pointing out of the place of
occurrence is concerned, in our opinion, this contention has also no force in
it because the place of occurrence was already known to the police prior to
their coming to the spot alongwith the appellants and preparation of pointing
out memo.
42. The arrest memo of appellant Mukesh @ Haddi is Ex. PW 10/C
which has been witnessed by PW 10 Ct. Hariom, PW 18 Gaurav Katheria,
PW-20 Akhil and PW 21 SI Tika Ram (Retd.), which has been prepared by
PW 29 Insp. J. D. Meena. The personal search memo of appellant Mukesh
@ Haddi is Ex. PW 10/D. Appellant Sonu @ Hemraj was arrested vide
memo Ex. PW 10/E and his arrest memo has also been witnessed by the
witnesses mentioned hereinabove and his arrest memo has also been
prepared by the IO PW 29 Inspector J.D Meena. The personal search memo
of appellant Sonu @ Hemraj is Ex. PW 10/F.
43. We have perused the testimonies of all the witnesses of arrest and
they have corroborated each other on all material aspects. Ld. counsels for
the appellants have failed to point out anything in their testimonies so as to
show that the arrest was not made in the manner as stated by the witnesses.
It has not been suggested to PW 18 Gaurav Katheria and PW 20 Akhil that
the appellants were not arrested as stated by the witnesses or that they were
lifted from their houses as was sought to be argued by the counsels for the
appellants. No evidence in defence has been led by the appellants to prove
that they were lifted from their respective houses.
44. In his statement U/s 313 Cr.P.C., appellant Sonu @ Hemraj has not
even stated that he was lifted from his house. Similarly, appellant Mukesh
@ Haddi has also not stated in his statement U/s 313 Cr.P.C. that he was
lifted from his house, when question regarding his manner and place of
arrest was put to him. Therefore, we have no reason to disbelieve the
version of the prosecution witnesses as far as the question of arrest of the
appellants is concerned.
45. As far as the question of non joining of public witnesses at the time of
arrest of appellants is concerned, PW 18 Gaurav Katheria and PW 20 Akhil
accompanied by the police party and in our opinion, there was no need for
the IO to join more public witnesses because it is the quality of the evidence
and not the quantity which is essential.
46. According to PW 29 who is the IO of the case, the appellants took
them near Govt. School Sangam Vihar and pointed out the place where they
had thrown the purses after taking out money. According to PW 29,
appellant Sonu @ Hemraj took out one leather purse of black colour from
the garbage and handed over the same to him. During the checking of the
purse, one I-card of Roshan Jha (deceased) with photo was found.
Appellant Sonu also took out another leather purse of brown colour from
the garbage and the same was handed over to him. During the checking, it
was found to contain one I-card with photo of PW 18 Gaurav Katheria.
Thereafter, IO alongwith Ct. Hariom, ASI Tika Ram and appellants went to
house No. A-120, Devli Extention, Sangam Vihar, where appellant Mukesh
@ Haddi took them to ground floor in a room. The said house was rented
house of Vijay, friend of appellants and appellant Mukesh @ Haddi took out
blood stained knife and handed over the same to him. He prepared the
sketch of the said knife and it was accordingly seized. The recovered purses
were seized vide memo Ex. PW 10/L and the knife was seized vide seizure
memo Ex. PW 10/N. The seizure memo of purses Ex. PW 10/L has been
witnessed by PW 21 S.I. Tika Ram and PW 10 Ct. Hariom and the seizure
memo of knife in question has also been witnessed by PW 10 Ct. Hari Om
and PW 21 SI Tika Ram. The testimonies of both these witnesses are
consistent in regard to the recovery effected on the pointing out of the
appellants. They were cross examined at length by the counsel for the
appellants but nothing could be elicited from their cross examination to
make them unreliable. They both have corroborated each other in regard to
the place of recovery of the purses and the knife. They both denied the
suggestion that the recoveries have been placed upon the appellants.
47. The counsels for the appellants have argued that no public witnesses
were joined at the time of effecting the recoveries. We have already
discussed hereinabove that non joining of public witnesses by the IO is not
mandatory in all circumstances and can, at the highest, be said to be a fault
on his part, but simply because the IO has failed to join the public witness or
there is some fault in the investigation, the same is insufficient to discredit
the entire case of the prosecution. In the cross examination of the recovery
witnesses, the Ld. defence counsels had failed to point out any material
contradiction which can be said to be such which could discredit the entire
recoveries effected at the instance of the appellants.
48. There is one more aspect of the case of the prosecution. The case
rests on the sole testimony of the eye witness who is PW 20 Akhil. We are
conscious of the fact that when there is a sole eye witness, his evidence is to
be accepted with an amount of caution, and in the light of other material
available on record. His testimony should be confidence inspiring and
beyond suspicion. We have discussed the testimony of PW 20 at
length, which leaves no doubt in our mind, that on the fateful night of
28/29-11-2010 he was with Roshan (since deceased) when the incident in
question took place, therefore, we find no reason to disbelieve his
testimony.
49. We have gone through the judgments relied upon by the Ld. counsel
for the appellant Mukesh @ Haddi. There is no dispute with regard to the
propositions of law laid down in the said judgments but each criminal case
revolves on its own facts and circumstances. In Shankarlal Vs. State of
Rajasthan ("supra") relied upon by the Ld. counsel for appellant Mukesh
@ Haddi, it was held by the Supreme Court that where the conduct of sole
eye witness, post incident, was unnatural and his testimony inconsistent and
unreliable, accused was entitled to benefit of doubt - Moreover, when he
was only a chance witness whose presence at the place of incident was
highly doubtful. But in the instant case, the testimony of the sole eye
witness i.e. PW-20 Akhil finds corroboration from other material on record
and he is not a chance witness as it is established on record that he had
accompanied the deceased on the date of the incident from Sangwan
Baratghar. His conduct post the incident cannot be said to be unnatural
looking to his age; his background, and; the circumstances discussed above.
50. In Harbeer Singh Vs. Sheesh Pal & others ("supra") relied upon by
the counsel for appellant Mukesh @ Haddi, it has been held that the guilt of
the accused must be proved beyond all reasonable doubt and if two views
are possible, the view which is favourable to accused should be adopted.
This is settled principle of criminal law and this judgment is differentiable
on facts and therefore not applicable to the case in hand.
51. The next judgment relied upon is Yakub Abdul Razak Memon Vs.
State of Maharashtra ("supra"). This judgment deals in detail in regard to
the investigation of a criminal trial and appreciation of evidence regarding
which there is no dispute but, again, as already observed hereinabove that as
each case has its own peculiar facts, therefore, this judgment is differentiated
on facts. However, there is no dispute with regard to the principles of law
laid down.
52. Counsel for the appellant Mukesh @ Haddi also relied upon Rambali
Vs. State of U.P. ("supra") and Krishna Vs. State ("supra") to submit that
the investigation in this case was defective. But the facts of these cases are
different from the facts of the case in hand. During the course of
arguments, the counsel for the appellant Mukesh @ Haddi has failed to
show any glaring defects on the part of the investigating officer which could
demolish the case of the prosecution. Rather, in these judgments it is held
that it is not proper to acquit an accused solely on account of defective
investigation, if the prosecution's case is otherwise established during trial,
based on satisfactory evidence.
53. In our opinion, there was satisfactory evidence on record to support
conviction. To sum up, we are of the opinion that PW-18 and PW-20 are
material eye witnesses of the case. PW-20 is the witness to the stabbing
incident in which Roshan lost his life. The prosecution has also been able to
prove the recoveries beyond the shadow of doubt.
54. Therefore, in view of the discussion hereinabove, we unhesitatingly
are of the opinion that both the appellants are guilty of the offence
committed. Both the appeals are accordingly dismissed. Impugned
judgment dated 01.10.2019 and order on sentence dated 23.12.2019 passed
by the Ld. Trial Court are, upheld. All pending applications (if any) are
disposed of. Trial court record be sent back forthwith alongwith a certified
copy of this judgment.
RAJNISH BHATNAGAR, J
VIPIN SANGHI, J
DECEMBER 24, 2020
Sumant
